The reason that attorneys on an informational and marketing site like AVVO in good faith respond with the recommendation to obtain an initial consultation with an attorney is that medical malpractice is a challenging complex area of the law not only in substantive law but also by procedure. If you think you have a case you must consult with a med mal attorney.

To more directly answer your question about "the act of malpractice", here is a bare bones summary about the basic elements of malpractice:
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Law Offices of Andrew D. Myers, North Andover, MA & Derry, NH provide answers for informational purposes only. Actual legal advice can only be given by an attorney licensed in your jurisdiction, thoroughly familiar with the area of the law in which your concern lies. This creates no attorney-client relationship.

Asker

Posted December 12, 2012 7:56pm

I read your summary....not what I was looking for but I did have to laugh when you wrote 'standard of care' these days that is so low that even a light bulb from the exam overhead in your gut would be consider reasonable.....
I wanted to know... file with Bd, file lawsuit...

The first thing anyone ought to do if they think they have suffered actionable malpractice is to discuss it with someone who knows how to evaluate medical malpractice cases.

Every law student learns about the elements of negligence: Duty, Breach of Duty, Proximate Cause, Cause in Fact, Damages. Professional negligence, of which medical malpractice is one type, is a special kind of negligence the elements of which require a breach of the applicable standard of care for the duty to be breached. Additionally in medical malpractice, as a general rule, the standard of care, breach of the standard of care, causation, and damages must all be proved through expert testimony, which typically involves hiring doctors at a cost of hundreds of dollars per hour. Except in the plainest of cases (hemostat left in patient, wrong leg amputated, etc.), where no expert testimony is necessary to understand the malpractice, expert testimony will be required, and in its absence the case will not make it to trial.

So evaluation to ascertain whether actionable malpractice even occurred is just the first step. But you are asking about procedures, "protocol." In my view, that puts the cart before the horse. Find out whether you even have an actionable malpractice claim by consulting someone who handles such claims in your state. There will be plenty of time to discuss "protocol" if in fact you have an actionable claim. And if not, you'll find that out too.

Not legal advice as I don't practice law in Massachusetts. It's just my two cents on your question in light of general principles of law. If you need legal advice, please consult a lawyer who holds Massachusetts licensure. That's not me.

If you think you have a basis for a medical malpractice case, you must consult a lawyer who is expert in the field. Medical malpractice litigation is not for part-timers or do-it-yourselfers. You can involve the state medical board if you don't have a lawyer. It is a good idea to consult with such a lawyer before deciding whether to make a complaint to the medical board. Sometimes a medical board complaint is an advantage to the plaintiff in a malpractice lawsuit, sometimes not.

Any opinions stated in response to Avvo questions are based upon the facts stated in the question. Responses to Avvo questions are for general information purposes only, and should not be construed or relied upon as legal advice.

Asker

Posted December 12, 2012 7:53pm

In Mass there is no advantage to filing a complaint. I actually am asking for information ... no case. I was shocked by an interview, well not interview the Med Bd Pres running from the Press making a comment that I do not believe it correct.... I thought I could get a simple answer on Protocol.... everyone knows AVVO always says to call an Attn.

Asker

Posted January 2, 2013 6:08am

but a complaint with the state medical board won't HURT a malrpactice claim?

A board action or complaint is not necessary in context of bring a lawsuit against a physician. That is an administrative process with the state board that licenses and regulates physicians. The Board can penalize a physician if they find that he or she violated the standard of care. Typically the patient doesn't need to hire a lawyer and the state's medical malpractice laws (even the statute of limitations) is beside the point as they only apply to lawsuits & not the administrative complaint. The downside for the patient is that no monetary compensation is awarded.

A lawsuit means a claim for monetary compensation for injuries. It's a civil court claim. The burden of proof must be met, which in most states is "a preponderence of the evidence," as opposed the the criminal standard of "beyond a reasonable doubt." Lawyers must be engaged. Medical experts must provide testimony to prove the case. Litigation is expensive. The plaintiff must prove that the defendant violated the minimum standard of reasonable medical care, caused significant injuries, and the injuries would have been avoided had the medical error not been committed.

Asker

Posted December 12, 2012 10:42pm

Ok thanks... I read in a response to another persons question that before a malpractice lawsuit can be filed the Board had to review it...actually the writer was quit 'serious' in the answer...so all things in place , experts etc, a suit can be filed directly with the courts.... just trying to understand that.... no intention of filing anything just confused by the other answer...

You make a interesting reference about sometimes needing a Board to review before a lawsuit can be filed. There are indeed a handful of states that require such a thing. It's not the same Board as the State Medical Board. It's usually a custom-tailored Board that is filled according to the state's medical malpractice statute. I don't know whether you have one in Massachusetts. I am aware of this system in a state near to me, Louisiana. In Louisiana, it's really terrible. I believe the plaintiff picks a Board member, the Defense picks one, and then a local judge picks an allegedly neutral one. Of course, this usually means that 2 of the 3 reviewers are physician are local to the town where the Defendant is part of the community. Ergo, malpractice cases are rare in Louisiana. If you think this may be the system in your state, you'll want to contact a local attorney to get better guidance on the way the review board is created.

Asker

Posted December 14, 2012 10:09pm

I think it is something like that in MA. I guess the local attorneys either aren't familiar or think it prioritory information (ha ha). I'll open up the Reg and MGL at some point and read up on it.
I am not looking at a malpractice suit just wanted the info for a project I'm working on.
Let me share this with you as a past juror on a malpractice suit about 8 yrs ago. A man died of a stomach torsion issue, I forgot the exact name but it was rare. He called his doctor for a week and was told to take laxatives and other over the counter things...which probably made it worse, in that his guts were basically in a knot being tighten and tighten. He or family call the Insurance 800 Nurse line and she said go to hospital. He was operated on .. immediately (or so), he had gangreen (sp). He died of infection, late 50's. The family was suing the Doc they had called for a week. The jury had little to no interest. They wanted lunch and to go home. At one point I reached for the documents and a fellow juror had a fit. The Doc was found innocent. The problem was the infection. The hospital it not do blood work or it wasn't shown that they did, all days following the operation. That was what I wanted to read. The guy died of infection. Had he been operated on earlier would he be alive... more likely but who knows. The lawyer for the family left a lot of obvious holes he might have had the wrong doctor. In any case I would never use that guy....and he was supposedly a friend to the guy that died. He kinda was blaming his nurse for given out bad info. The family lawyer should have made it clear that he was responsible. So, at the end the Judge spoke with up and said that malpractice in Mass is tough. I was looking at a Doc for something once and found he had 2 major malpractice pay outs and slap on the wrist from the Board about a year later I just happen to look him up he was up to 6. When we first talked with him he blamed his nurse and computers. Red Flag. I read one of the complaints.... ya he was at fault ... he fluid a person into CHF and didn't recognized it .....